Madras High Court
Kesavan vs State Rep. By Its on 29 August, 2023
Crl.O.P.No.19535 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2023
CORAM :
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.No.19535 of 2023
and Crl.M.P.No.13187 of 2023
Kesavan .. Petitioner
Versus
State Rep. by its
Inspector of Police,
All Women Police Station,
Chengalpattu.
(Cr.No.3 of 2018) .. Respondent
Prayer : Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to set aside the order, dated 01.08.2023 passed in
Crl.M.P.No.515 of 2023 in Spl.S.C.No.111 of 2019 by the Session Judge,
Special Court, for Exclusive Trial of Case under POCSO Act, Chengalpattu
and subsequently, direct the Sessions Judge, Special Court (POCSO Act) to
recall the witnesses P.W.1 and P.W.3, P.W.9 and P.W.11 for further cross in
Spl.S.C.No.111 of 2019 pending on the file the Session Judge, Special
Court, For Exclusive Trial of Case under POCSO Act, Chengalpattu.
For Petitioner : Mr.J.Rajmohan
For Respondent : Mr.A.Damodaran,
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Crl.O.P.No.19535 of 2023
Additional Public Prosecutor
ORDER
This petition has been filed challenging the order passed by the Court
below dismissing the application filed under Section 311 of Cr.P.C., to
recall P.W.1 to P.W.3 and P.W.9 and P.W.11 for further cross-examination.
2. Heard Mr.J.Rajmohan, learned Counsel for the petitioner and
Mr.A.Damodaran, learned Additional Public Prosecutor for the respondent.
3. The petitioner is facing trial before the Court below for offences
under Sections 354A(2), 376(1) read with Section 511 of I.P.C and Section
18 read with Section 4 of the POCSO Act, 2012. The prosecution examined
11 witnesses and marked 13 exhibits and the incriminating materials were
also put to the petitioner while he was questioned under Section 313 of
Cr.P.C. The arguments were also completed and the case is at the stage of
pronouncing judgment. At this stage, the Court below exercised its power
under Section 216 of Cr.P.C., and altered the charges to Section 354A(2) of
I.P.C and Section 7 read with Section 8 of the POCSO Act, 2012.
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Crl.O.P.No.19535 of 2023
4. At this juncture, the petitioner filed an application under Section
311 of Cr.P.C., in Crl.M.P.No.515 of 2023 to recall P.W.1 to P.W.3 and
P.W.9 and P.W.11 for further cross-examination. This application has been
dismissed by the Court below and aggrieved by the same, the present
petition has been filed before this Court.
5. The Court below had dismissed the application mainly on the
ground that the witnesses, who were sought to be recalled by the petitioner,
have already been cross-examined by the petitioner and that apart, P.W.2 is
the victim girl and P.W.1 and P.W.3 are her parents and they are vulnerable
witnesses and hence, they cannot be recalled. Insofar as P.W.9 and P.W.11
are concerned, the Court below came to a conclusion that they were
Investigation Officers and they have already been cross-examined by the
petitioner.
6. In the considered view of this Court, the Court below completely
lost sight of Section 217 of Cr.P.C. Whenever a charge is altered / added by
the Trial Court after the commencement of the trial, both the prosecution as
well as the accused person have the right to recall and examine the
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Crl.O.P.No.19535 of 2023
witnesses with reference to such altered / added charges unless the Court
gives a finding that such recalling of witnesses is vexatious or it is done to
delay or defeat the ends of justice.
7. In the instant case, the matter was at the stage of final hearing and
in fact, both the sides have argued the case and thereafter, the Court decided
to alter the charges. The Trial Court has all the power to alter / add the
charges at any time before the judgment is pronounced. Once the Court
exercises such a power and alters the charges, an opportunity must be given
to the accused person to examine the witnesses insofar as the altered charge
is concerned. Such a right has in fact been given under Section 217 of
Cr.P.C. The Court below did not take into consideration such a right given
and it went merely by the earlier cross-examination that was done by the
petitioner for the charges for which the petitioner underwent trial.
8. In the light of the above discussion, the order passed by the Court
below in Crl.M.P.No.515 of 2023, dated 01.08.2023 is hereby set aside.
The Court below shall fix a date for recalling the witnesses namely viz.,
P.W.1 to P.W.3 and P.W.9 and P.W.11 and they shall be cross-examined
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Crl.O.P.No.19535 of 2023
before the Court below only towards facts pertaining to the altered charges
and the petitioner will not be allowed to conduct a de novo trial in this case.
It is also made clear that the petitioner will complete the cross-examination
on the date of the appearance of the witnesses and the cross-examination
will be completed on the same day. The Court below shall ensure that it
takes an effective participation and keep in mind the provisions of Sections
136 and 165 of the Indian Evidence Act to ensure that only appropriate
questions are put to the witnesses pertaining to the altered charges.
9. This Criminal Original Petition is allowed with the above
directions. Consequently, connected miscellaneous petition is closed.
29.08.2023
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
Note : Issue order copy on 01.09.2023.
To
1. The Sessions Judge,
Special Court for Exclusive Trial of Cases
under POCSO Act, Chengalpattu.
2. The Inspector of Police,
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Crl.O.P.No.19535 of 2023
All Women Police Station,
Chengalpattu.
3. The Public Prosecutor,
High Court of Madras.
N.ANAND VENKATESH, J.
grs
Crl.O.P.No.19535 of 2023
and Crl.M.P.No.13187 of 2023
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19535 of 2023
29.08.2023
https://www.mhc.tn.gov.in/judis
